The Western Cape’s judge president John Hlophe has told the Gauteng high court that non-profit organisation Freedom Under Law (FUL) should be barred from joining his case against the Judicial Service Commission (JSC).
In a virtual hearing on Monday before a full bench of the Gauteng high court, Hlophe’s advocate, Thembalihle Sidaki, argued against FUL joining the case.
Hlophe is litigating against the JSC over its finding of gross misconduct against him.
But in Monday’s hearing Hlophe argued against FUL’s participation as a respondent in the matter. The bench will decide on whether FUL can join in the next ten days.
Whereas a friend of the court adopts a neutral stance providing input on legal matters and other topics relevant to a case, a respondent is an adversary of the applicant.
The progress of parliament’s vote on whether to impeach Hlophe, following the JSC’s finding of gross misconduct against him, hinges on the outcome of this case.
“The kernel of FUL’s intended participation in this matter is to oppose as a respondent judge president Hlophe’s application to review the JSC decision and to vigorously defend the majority decision of the JSC. FUL’s interest is clearly that JP Hlophe must be found guilty and impeached whatever the circumstances,” claimed Sidaki.
He argued there was “such paucity in the information” in FUL’s founding affidavit. He said the non-profit made allegations against Hlophe which “cried out” for a response. Hlophe raised complaints about FUL and its chair, former Constitutional Court justice Johann Kriegler, over the latter’s public comments.
“We submit, in that there is prejudice,” Sadiki said.
He mentioned FUL’s writing to the JSC in June, when it asked about progress in finalising the inquiry into Hlophe. “No organisation should be allowed, we submit, to usurp or be seen to usurp the functions of a constitutional body,” said Sidaki. He submitted FUL made out no case for intervention.
FUL’s counsel, senior advocate Max du Plessis, retorted by raising Hlophe’s prior and failed attempts to exclude the non-profit from cases about his misconduct. These matters were heard in the high court and appellate division.
Du Plessis argued FUL’s participation in this case was within its mandate, and it was in the public interest for the court to admit it as a respondent. He regretted the “incautious claims” Hlophe made about FUL and Kriegler.
Du Plessis said FUL was motivated to join the case — and as a respondent, not a friend of the court — because it planned to resist Hlophe’s “efforts to allegedly avoid accountability” in terms of the JSC’s finding against him and the impeachment vote now stalled by this case.
“It is important that FUL is able to ensure the matter reaches finality expeditiously and properly. It is in the interests of justice this matter is brought to finality,” said Du Plessis.
“The subject matter of this case goes to the very heart of our constitutional democracy. It is the paragon case, or a paragon case of public importance and interests, and what the Constitutional Court has described as constitutional litigation,” he said.
As for Hlophe’s complaints about Kriegler’s public criticism, Du Plessis said: “So what? That has no bearing on standing.” He submitted the chair’s views were not necessarily those of FUL or its board. Du Plessis told the court FUL’s entire case was that misconduct had been committed and must be investigated properly.
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